Friday, February 3, 2012

This morning, Judge Andreas Voss of the Mannheim Regional Court pronounced a decision on a German Motorola Mobility lawsuit against Apple Sales International, Apple's Ireland-based European sales organization. Motorola won a permanent injunction against the push email service of Apple's iCloud (and its predecessor, MobileMe) and any devices that can access it. Note that even though today's decision enjoins Apple's European distribution arm, the scope of the injunction is not Europe-wide: the Irish entity has to respect it as far as the German market is concerned (for example, it's the contractual partner of customers buying Apple products from Apple's German online store).

I have taken a closer look at the technology involved, and at my notes from the related trial. It appears to me that Apple can keep the iCloud (and MobileMe) going for the most part, but if and when Motorola enforces today's decision, it will have to deactivate the push email service. Push email is what the BlackBerry made popular: if you get a new email, your client device is instantly informed. The alternative, which Apple's customers in Germany will have to use if they receive iCloud/MobileMe email, is to set a client to check for new emails periodically and pull them. That's what desktop email clients like Outlook typically do. On a mobile device, BlackBerry-style push is clearly preferable because it results in instant notification and reduces data traffic. But from a practical point of view, setting one's email client to, for example, a two-minute interval to check for and pull any new email messages is not the end of the world. Judge Voss talked about this kind of workaround at the hearing. I didn't have a firm opinion at the time, but having re-read the language of the enforced claims (one method and one apparatus claim), I feel quite strongly that switching from push to pull email will help Apple steer clear of continued infringement of that patent. (Apple will nevertheless be liable for damages for past infringement.)

Today's injunction is a permanent one, not a preliminary one. Preliminary injunctions come down at the end of fast-track proceedings. This one, however, resulted from a full proceeding with a trial. The complaint was filed in April 2011.

This is already the third Mannheim judgment in Motorola's favor against Apple. One of those was only a default judgment that will be reviewed later today, but so far Motorola has won both substantive decisions against Apple. By contrast, Samsung has lost its first two Mannheim cases against Apple. Motorola is represented by Quinn Emanuel, which has an incredible track record in commercial litigation in general and IP litigation in particular. Samsung works with Quinn Emanuel only in the United States and with respect to two patents recently asserted in Germany (but not on the cases that Samsung has already lost).

Today's judgment is appealable (which is why it's only "preliminarily enforceable"), and it's a given that Apple will appeal this to the Karlsruhe Higher Regional Court. The term "preliminarily enforceable" means that Motorola can seek its enforcement anytime now if it posts a 100 million euro bond, but if an appeals court overturns the ruling, Motorola will be liable for premature enforcement of an improperly-granted injunction. In that case, Motorola will owe whatever damages are determined later. The 100 million euro bond is neither a minimum amount nor a ceiling for that event. It's just the amount the court believes Motorola should guarantee. Apple had argued that the appropriate bond amount should be two billion euros. Even if the risk is in the billions of euros, there is so much at stake in this dispute that I think Motorola might want to seek enforcement at some stage (particularly if Google, with its war chest in the tens of billions of dollars, gets to acquire it).

Today's decision comes as little surprise given that the related mid-November trial had gone very well for Motorola. At the time, Judge Voss didn't appear to be overly impressed with Apple's affirmative defenses. At today's pronouncement session, he reiterated that the court interprets the phrase "responsive to" as it was inclined to do at the trial -- in Motorola's, not in Apple's favor.

In this litigation, Motorola asserted EP (European Patent) 0847654 (B1) on a "multiple pager status synchronization system and method"; this is the European equivalent of U.S. Patent No. 5,754,119. MMI claimed infringement of this patent by Apple's iCloud service as well as all Apple products containing the iCloud client software.

This is one of the two patents Motorola asserted in the action in which a default judgment was entered against Apple in early November.

Later today, the Mannheim court will hold a second trial since the first one couldn't take place due to a no-show by Apple's attorneys. In that litigation, Apple Inc. (the U.S. parent company) is the defendant. But the validity and infringement issues relevant to that case have already been adjudicated by the Mannheim court in connection with lawsuits against Apple Sales International:

On December 9, 2011, the court granted Motorola a permanent injunction against Apple (which Apple said it would appeal right away) over a FRAND-pledged patent declared essential to GPRS, the data transmission standard built on top of GSM. Unless Apple presents any new facts or arguments that lead the court to have second thoughts, the decision on the case with the default judgment would be consistent with the previous rulings on those patents. I will report n this later.

Motorola has a third patent in action against Apple in Germany. In a lawsuit against Apple Sales International (the aforementioned Ireland-based distribution entity), Motorola is asserting a patent that has been declared essential to 3G/UMTS. At the trial, which took place in early December, the court appeared unconvinced of the merits of Motorola's case. A decision on that one was scheduled for next Friday (February 10, 2012).

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.